The People v. David Eligio Garcia

THE PEOPLE, PLAINTIFF AND RESPONDENT,v.DAVID ELIGIO GARCIA, DEFENDANT AND APPELLANT.

APPEAL from a judgment of the Superior Court of Riverside County, Peter L. Spinetta, Judge. Affirmed. (Super. Ct. No. RIF112212)

The opinion of the court was delivered by: Benke, Acting P. J.

P.v . Garcia CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted David Eligio Garcia of attempted murder (Pen. Code,*fn1 §§187, 664), shooting at an occupied motor vehicle (§ 246), and assault with a semi-automatic firearm (§245, subd. (b)). The jury made true a finding Garcia was armed with a firearm in the commission of the offenses (§12022, subd. (a)(1)). However, the jury found not true an allegation Garcia personally and intentionally used a firearm in the commission of the attempted murder. The court sentenced Garcia to a term of life in state prison, with a consecutive determinate term of one year. On appeal Garcia contends the court erred in denying his motion for a new trial and in admitting hearsay evidence as past recollection recorded. Neither of these contentions has merit and accordingly we affirm the judgment.

FACTUAL BACKGROUND

Beatriz Barajas

On September 4, 2003, Beatriz Barajas was Garcia's girlfriend. That evening Barajas got off work at 8:00 p.m. and returned home to find Garcia waiting for her. The two smoked methamphetamine together and at some point during the course of the evening, Garcia told Barajas he wanted to go see a friend of his, Vladimir Diaz. Garcia and Barajas then got into Barajas's Toyota Celica and Garcia drove them to Diaz's home near Vine Street in Riverside.

Upon arriving at Diaz's home, Garcia went inside while Barajas stayed in the car. After a few minutes, Garcia and Diaz came back to the car. Barajas got in the back seat, Diaz sat in the front passenger seat, and Garcia again drove. While in the car the three occupants smoked more methamphetamine. Diaz told Barajas that either he or his house had been shot at earlier in the evening and the people who shot at him lived in the area near Victoria and 14th Street in Riverside.

After driving to the home of yet another friend, Garcia drove the car to Kansas Street, near 14th street, and parked the car. While the car was parked, Barajas saw Garcia dismantle a handgun and show Diaz how to clean the gun and wipe fingerprints from bullets.

Garcia then started driving the car and shortly thereafter told Barajas to lie down in the back seat of the car. After feeling a right turn, Barajas heard "popping sounds" coming from the front of the car. She later described the sounds as three to four gunshots.

After the shots were fired, Garcia drove away from the scene and found a cul-de-sac where Diaz threw the gun out of a car window. After driving around some more, the three returned to the cul de sac to look for the gun. They were unable to find it and they then searched the car for shell casings. Barajas was able to locate one and threw it out a car window as well.

Garcia then drove erratically around Riverside because he thought he was being chased and shot at. Eventually, the car was pulled over by a California Highway Patrol (CHP) officer, who ...

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